Law- Criminal Law Notes

CRIMINAL LAW
I know it’s illegal, but is it a crime?Many things are illegal: jay-walking, speeding, or setting up a clothes line outside to dry your laundry (in West Vancouver), but they aren’t necessarily crimes. What then makes something a crime?

Criminal LawCriminal law deals with offences committed against society (often these appear to be against individuals). The purpose of criminal law is to keep order in society and deter the committing of crimes. Thus, criminal law emphasizes:

 Prevention
 Penalties
As we will see, criminal law does not focus on compensating victims of crime. Sources of Criminal LawUnder the Constitution, the federal government has sole discretion to decide what is a crime and the corresponding penalties. Most criminal law is found in three pieces of federal legislation (and one remaining common-law crime):

1. Canadian Criminal Code – contains most of the criminal law; 2. Controlled Drugs and Substances Act;
3. Youth Criminal Justice Act; and
4. Common-law crime of Criminal Contempt of Court.While the federal government has exclusive jurisdiction over criminal matters , the provinces can pass laws that are often considered quasi-criminal. Laws governing the operation of motor vehicles, noise bylaws or pollution may have similar penalties as criminal law, but are not technically viewed as criminal.

Suggested conditions for proposed new criminal laws:
 The action must harm other people
 The action must violate basic values of society
 Using the law to deal with the action/problem should not violate basic values of society
 Criminal law should be able to make a significant contribution to resolving the problem (consider drug addiction – is it a legal problem or a medical problem?) Types of Criminal Offences
Offences may be grouped into three different categories:1. Summary conviction offences – are minor criminal offences and usually result in prompt appearance in court and maximum penalties usually of a fine of less than $2,000 and/or six months in jail. Defacing a coin or passing on a defaced coin is a summary conviction offence.1Summary conviction offences are also the only criminal offences that have a statue of limitation – six months!

1

Section 456 of the Criminal Code For more “light” reading on various crimes visit the Canadian government’s website at: http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:s_1/20090929/en#anchorboga:s_1

2. Indictable offences – are the most serious offences that give rise to penalties of up to life imprisonment – first degree murder, for example.3. Hybrid offences – are offences that may result in the Crown attorney proceeding by way of summary conviction or by indictment. Charging a criminal interest rate (s. 347) is punishable either as an indictable offence (up to five years in prison) or by summary conviction (fine up to $25,000 and/or a prison term of up to six months).

What are the elements (parts) of a crime that must be proven in court? As a result of the common law, and more recently section 11(d) of the Charter, the Crown prosecutor (or just the “Crown”) has the burden of proving the guilt of the accused beyond a reasonable doubt. Thus, if the judge or jury is not convinced of the guilt of the accused beyond a reasonable doubt, he/she must be acquitted (set free or found not guilty) – this is also known as the “Burden of Proof”. The relevant question becomes what exactly must the Crown prove? There are two parts that must be proven in every criminal trial: 1.

Actus Reus – is the actual act (thing) that is considered a criminal act. The Criminal Code establishes what acts are prohibited. Thus, for the crime of break and enter, the Crown must prove that the accused both broke into the house (smashed the window) an d that she entered. This is why police will often watch suspected criminals outside a home and wait until she/he enters before arresting them.

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State v. Doug
Homicide:
The unlawful taking of the life of one human being by another.
Actual Causation :
The defendant’s act must have been the “cause in fact” of the victim’s death. Without the defendant’s actions, the victim would not have died.
“But for” Doug shooting and killing Tom, he would not have died.
Proximate Causation:
A defendant’s actions are the proximate cause of the victim’s death if the result occurs as a consequence of the defendant’s act. There is no other casually connected act. The defendant’s conduct is the direct cause of the harm.
Doug was the sole causal agent, and he brought about Tom’s death by shooting and killing him. Therefore, Doug was the proximate cause of Tom’s death.
Murder:
Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought is the intention to cause the death of, or grievous bodily harm to, a human being.
Because Doug shot and killed Tom he will be charged with murder. Because Doug went to a nearby drawer to grab a gun, and then shot Dan, there was malice aforethought.
First Degree Murder:
First degree murder is murder where there was premeditation, deliberation, and then willful killing.
Doug was “fearing for his life” and did not have premeditation or deliberation.
Doug will not be convicted of first degree murder.
Second Degree Murder:
Second degree murder is murder where there is...

...This essay affirms that it is possible to draw a distinction; albeit not a clear one. A distinction is important in order to avoid overlooking omissions, which can form a basis for criminal liability; and in the doctrine of actus novus interveniens.
A clear distinction is seen in the definitions of an act and omission. When the actus reus, and mens rea of a crime exists – an act is an action that have caused harm to a person, or damage to property, while an omission is where an action that could have reduced or prevented the harm or damage is not taken when the person in under a duty.
However, the judges faces difficulty in distinction when (1) the actus reus of a crime does not admit an omission to form the basis of satisfying its criteria (2) the statute law does not express when a person has an obligation to act and how an omission could amount to crime. In such cases, judges have attempted to circumvent these hurdles by disguising an omission as an act to criminalize the defendants.
In Fagan v Metropolitan Police Commissioner [1969], Fagan’s act of accidentally driving onto a policeman’s foot, and his refusal to remove the car was seen as one continuous act. This decision circumvented the issue of necessitating the mens rea and actus reus of battery to coincide; however, it led to the blurring of the distinction.
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In criminallaw it is the basic principle that a crime consists of a mental element and a physical element. A person's awareness of the fact that his or her conduct is criminal is the mental element, and actus reus' (the act itself) is the physical element.
The concept of Mens Rea started its development in the 1600s in England when judges started to say that an act alone could not create criminality unless it was adjunct with a guilty state of mind. The degree for a particular common law crime varied for Mens Rea. Murder required a malicious state of mind, whereas larceny required a felonious state of mind.
Mens Rea is generally used along with the words general intent, however this creates confusion since general intent is used to describe criminal liability when a defendant does not intend to bring about a particular result. On the other hand specific intent describes a particular state of mind above and beyond what is generally required. [1]
NEED TO ESTABLISH MENS REA IN ORDER TO SECURE A CONVICTION
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...LS160-CriminalLaw and Procedure
BIBLIOGRAPHY
A Articles/Books/Reports
Hayes, Robert & Eburn, Michael, CriminalLaw and Procedure in NSW
Chesterman, Michael, Criminal Trial Juries in Australia
Crimes Act 1900, NSW
Criminal Procedure Act
Legislative Council Select Committee on the partial defence of provocation – Inquiry into the partial defence of provocation, July 2012
B Websites
www.judcom.nsw.gov.au/publications
www.hcourt.gov.au
www.parliament.nsw.gov.au
www.lawlink.nsw.gov.au
www.une.com.au
MEMORANDUM
TO: Hilary Undermanager
RE: Advice re liability for unlawful homicide of Montague Portwein
I INTRODUCTION
This case is about Hilary Undermanager, a motor mechanic, who caused the death of his colleague, Montague Portwein, with a wrench.
II MURDER OF MONTAGUE PORTWEIN
Murder is defined in s 18(1)(a) of the Crimes Act 1900 (NSW) in the following terms:
“Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.”
Murder has been...

...1) Issues of Criminal Liability: Actus Reus, Omissions, Causation, Mens Rea, Criminal Liability and Offences of Strict Liability
6. A duty which arises because the D has set a chain of events in motion R v Miller (1983) - D was squatting, slept with a cigarette, set fire to mattress. He moved to another room without getting help. Charged with Arson. AO2 Points on the Law of Omissions:  Should there be a Good Samaritan law and wider liability? o Yes: Modern, moral responsibilities o No: Could do more harm than good, could be abused to commit crime  There are difficulties in deciding when a duty does and does not exist o Decided by judge, if there is sufficient evidence, and jury, if it exists and has been broken o Makes the law able to expand for new situations o Creates uncertainty in the law  Should a person really be liable for failure to act when they have assumed a duty? o Is it harsh that someone who accepts someone into their home is then responsible? o Adults generally held to be responsible for their own lives o What if the adult is vulnerable?  Is there a justification for the statutory imposition of duties? o Public Policy Reasons Causation  Where a consequence has to be proved, the prosecution must show that o It was the factual cause o It was the legal cause o There was no ‘nouvus actus interveniens’
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...The law of intention, following the cases of Woollin [1999] 1 AC 82 and Matthews [2003] 3 Cr App R 30, is now satisfactorily defined in the criminallaw.
Intention, normally means desire to aim at something. However, in criminallaw, mens rea known as ‘guilty mine’, it requires two distinguishable intentions which are direct intention as well as oblique intention, and apart from, also recklessness. Direct intention means the consequences of the action is desired specifically, just like murder. Defendant is purposed to achieve the death or the grievous bodily harm (GBH) of the victim R v Mohan [1975]. Oblique intention also known as foresight intent, means the consequence which the defendant is not desired, however, it is going to happen when he goes ahead with his acts (Law teacher, 2012). An unsurprising side-effect would result when defendant is achieving some other consequences R V Nedrick [1986]. Under these situations, the court will remind the jury to consider how probable the consequence was foreseen by the defendant. Generally, recklessness means to take an unjustified risk. It covers the case of harm such as manslaughter or criminal damage. Objective and subjective test will be applied respectively in different cases. In other words, intention could be the worst culpability in mens rea. Follow up would be the recklessness.
In the case of R v Woollin [1999], the...

...Principles of Criminal Liability
1/16/2013
Student ID:
Word Count: 2482
Criminal activities are very common in our society. With the intention to hamper the property of other people or causing ill effect to others, criminal activities are occurred usually. Sometimes people involve themselves with some activities to injure others due to personal clash or from ill temperament. Some activities which may be done to cause simple injury may bring the liability of a murderer or manslaughter. To understand the situation laws regarding criminal liability of murderer or manslaughter are required reviewing. This case study has been designed to discuss these issues. In the stated case it has been shown that the simple intention to injure other one caused death to a third party. Here, the accused tampered the brakes of another person’s so that person would have an accident and injure himself. But due to this tampering another person got accident and who eventually died. Considering the situation this study will discuss whether the person who committed this activity is liable for murder or manslaughter or any other criminal liabilities.
Nadeem and Abid are next-door neighbors who are having their own car. One day they argued regarding card parking in the road that is outside of their houses. Due to this argument Abid got some ill...

...﻿Assess the modern approaches to the definition of ‘intention’ in English CriminalLaw?
Introduction
Intention is a fundamental term in English
CriminalLaw. Numerous criminal offences are defined as to require the proof of intention. It might be expected that the meaning of such a fundamental term would be settle a long time ago, however , that is not the case. Over the years there had been conflicting debate and courts had faced great difficulty in defining intention. Intention had been defined inconsistently and ambiguously by different judges in different contexts.
The debate starts with DPP v Smith (1961) and ends with R v Woolin (1998)
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(CPS) the mens rea needs to be proven. There are four types of mens rea. They are intention, negligence, recklessness and knowledge.
Intention and recklessness are hierarchical concepts therefore a clear boundary has to be drawn in order to label appropriate criminal liability. Furthermore, it is the task of the juries to decide whether or not the accused did or did not intend the consequence, the legal...